September 13, 2005

I just caught a few minutes of the Roberts hearings, with Arlen Specter questioning Roberts about the right of privacy. Roberts is giving really short, crisp answers, and Specter seems really nervous as he struggles to get out his questions. Perhaps he's surprised by the brevity of the answers and is worrying about running out of material. Asked about his reference to "the so-called right of privacy," Roberts clearly explains, with references to the First, Third, Fourth, and Fifth Amendments, that there is a constitutional right of privacy. He doesn't hedge at all, and Specter seems to be at something of a loss for follow-up questions.

I don't have time to keep watching, but I'll be back this afternoon with more.

I would seem to agree. Ann, you are the Con Law expert here, but it sounds from what you said like he is accepting Griswold. This could be either good or bad (depending of course on your position in these matters).

On the one hand, he could be stating that he accepts this all as settled precedent - i.e. that he won't be an activist Justice. A second is that he likes the right of privacy, but may not be overly excited about expanding the right of abortion. And thirdly, that he is a true stealth candidate.

My guess is the first. The second seems a stretch, and I think he was too well vetted for the third.

Good question. However, I do think that there are a lot of anti-abortion conservatives out there who believe the Constitution contains a right to privacy--one that does not include the right to kill a fetus.

As I read Roberts' answer, almost until the very end, he very carefully avoided saying there was a GENERAL right to privacy - he listed the SPECIFIC privacy rights guaranteed by the constitution. And I was thinking "maybe this guy isn't a blunder after all!"

After all, he had very neatly answered questions about the precedential weight of Roe by mentioning Lochner and Plessy, and noting that they were overruled, on no better grounds than because they were wrongly decided,

But then he talked about the 14th amendment, and if I heard right, Judge Roberts bought into substantive due process on live television. A few minutes later he seemed to buy into the living constitution doctrine. Not happy, so far.

The way he moves his right hand clearly shows he has never handled many guns. I'm afraid he will want to weaken the traditional understanding of the 2cd amendment. Just watch that right hand of his and you'll see what I mean.

I give Roberts a lot of credit for keeping his cool. It seemed as though Kennedy was trying to make him lose it by interrupting him, not allowing him to answer, and then not listening to his answers. I enjoyed Kennedy getting reprimanded for talking over Roberts.

So far, it seems that Roberts has kept from answering any questions that may come before the Supreme Court in the future. He has spoken about cases that have already been before the court without seeming to stand on one side or the other but discussing the case as it was decided. And, as Simon points out, mentioning cases that have been overturned because they were wrongly decided.

I don't get the feeling that he is a staunch pro-life and that even if he is in his private life, he would decide a case based on the facts presented and not on his personal views. Of course, he could just be a very convincing lawyer.

The questioning sucks thus far. It's all about abortion and civil rights, which shows just how much of it is grandstanding. No questions about property rights or gay marriage or use of international law to guide interpretation.

The only one to venture off the beaten path was Leahy, who asked some separation of powers questions. But even that was with an eye towards embarrassing the administration on torture. What a farce.

I suppose on some level his questioning is effective... unless you don't expect someone to take footage of you being a total bully and make a 30 second spot out of it.

Unfortunately, Biden already has a record of doing this in public to voters, too ("I think I have a higher IQ than you" has to be the second most self-destructive thing you could say to a voter, after "Hey, could I borrow your eight-year-old boy for the weekend?") Prediction: Biden will come in a humiliating seventh in Iowa, after Hillary Clinton, Mark Warner, Evan Bayh, John Edwards, John Kerry, and Al Sharpton.

Re Michael's questioon about Biden. Joe Biden wants it, and certainly wants to run. I will give real money to any person who runs against Joe Biden in any capacity. From time to time, he is mentioned as a Democratic contender. Let me say something to my democratic friends: if this man were a genuine contender for the Democratic nomination, you guys would be far, far closer to the end of your rope than anyone has suggested. From where I sit, you are NOT so desparate for candidates that this guy is a contender.

I don't mind if Chief Justice Roberts is pro life or pro choice; I'm less worried about his politics. As I've mentioned before, I don't want liberal nominees, I don't want conservative nominees, I want originalist nominees, and Roberts has yet to prove that he has, despite being specifically given the chance to do so by Sen. Grassley (good answer as far as it went, which wasn't far enough). Abortion is categorically a matter for the states; there is no federal constitutional right to an abortion, there is no federal constitutional power to prohibit abortion, and I think Justice Scalia is exactly right (not that I make much of a habit of disagreeing with Nino) to say that he would vote against a Federal law barring abortion just as readily as he would vote to overturn Roe and Casey. It's not a question of whether anyone is pro life or pro choice; both are perfectly reasonable arguments within their own premises and presumptions, but their arguments are political arguments which have no place in the Court. Abortion is not the only thing corrupting this process, but it is emblematic of the wider problem, as is Sen. Kennedy's absurd speach at Roberts earlier, in which he seems to think that Judge Roberts has been nominated for the position of Superman.

I think that Roberts is being careful with his answers. It is one thing to say that the Constitution has a right to privacy, it is another thing to say that that right pertains to a woman being able to murder her baby. Either way, it amazes me that John Roberts is able to stay awake during these hearings.

It was interesting watching the hearing on PBS this morning (I don't have cable), and observing Joe Biden looking a bit foolish trying to ask questions that would force Roberts into a state of sudden verbal and analytical paralysis.

Biden largely spent his time shuffling papers, taking Roberts' responses to absurd extremes, and complaining that he was running out of minutes (minutes he used to largely talk over Roberts' careful answers).

At one point they got on the topic of federal laws that protect women from violence, with Biden taking the low road by suggesting that Roberts was in favor of women being smashed about. At that point Roberts calmly brought up the issue of federalism being the issue, and that it was not accurate to suggest that he was against laws advocating equality or the protection of women. But the manner in which Roberts responded had the effect of making Biden look just really tawdry.

Roberts remained unruffled, keeping his answers short and his face pleasant and relaxed. I would suspect that if he can continue on in this manner, a lot of senators will be intimidated into capitulation, if only to avoid coming off looking stupid.

In his words to Biden, Roberts reiterated the point that some of his quoted opinions were the result of working as a staff lawyer, and not necessarily his personal legal leanings.

As for privacy, I think one can affirm a belief in a right to privacy, while still affording that right to every perceived living thing (fetuses included).

If one extends a privacy right that far, it actually negates any application to abortion. So I don't think his comments necessarily give any indication of where he might come down on the abortion issue as a whole.

I DO not agree what Ann says, that Roberts affirmed a constitutional right of privacy.

First, he said "The right to privacy is protected under the Constitution in various ways." This means it is not a right in se but a right that is scattered through the constitution. (For instance "the Third Amendment, protecting their homes against the quartering of troops.")

Second, he said he agree with the CONCLUSION of Griswold, but not necessarily the legal REASONING behind it. Certainly Roberts believes in precedent. Thus, he is likely to affirm the limited precedent that Griswold offers. However, he did not say what he thinks of the reasoning in Griswold, that there is a broad general right in the constitution to privacy. This is emphasized via his explanation of when he said that he personally believes in "marital privacy." Be careful not to confuse his personal opinions, which he is careful to distinguish, to what he thinks with the legal reasoning (aka belief) in certain rights or reasonings.

Jonathan suggested that Judge Roberts more accurately agreed with the outcome of Griswold, but not the reasoning. And, indeed, this would seem much more in character. He comes across much too cautious to ever be comfortable with this free wheeling decision, based on the notorious eminations and pnumbras.

"Specter: Do you believe today that the right to privacy does exist in the Constitution?

ROBERTS: Senator, I do."

Tough to say from that that he does not affirm a constitutional right to privacy. It may not be the "right to privacy" we think of from Griswold, but it does mean that there is a right to privacy in the constitution.

Jim,I think what Jonathan is saying is that Roberts employed a clever bit of rhetorical gymnastics, answering Specter's question as to whether there is A right to privacy, generally, by listing examples of specific rights of privacy guaranteed by the constitution. There ARE certain privacy rights in the constitution, but what there is not is a general, amorphous right to privacy. I hope that Roberts was merely being a skillful rhetorician and intended to dodge the question.

I think you need to look at his expanded comments more closely. He does not affirm one abstract right of privacy in the constitution that many people hold. For instance, after he said "I do" to Spector's question, he said "The right to privacy is protected under the Constitution in various ways." Then, he listed different aspects of the constitution which did thus. His "right to privacy" is based on scattered textual bases in the constitution, whereas when people (especially Senators) speak of a "right to privacy," they generally mean that the Constitution has a "right to privacy" on par with, say, "freedom of speech." Thus, if a future case came up, do not expect judge Roberts to rule that people have a "fundamental right to privacy" in se. It must be rooted somewhere in the text.

The difference is that privacy, as mentioned in the constitution, is an INCIDENTAL result of constitutional stipulations and amendments as opposed to a STANDALONE principle.

As far as the logic of Griswold goes, I think he indicates that he agrees with the result as precedent, but not so sure that the reasoning in Griswold has stood the test of time:

"I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach."

My point is simply that he does not seem to agree with the reasoning in Griswold, although he seemingly is willing to uphold it as precedent, because it is well, precedent.

I think you need to look at his expanded comments more closely. He does not affirm one abstract right of privacy in the constitution that many people hold. For instance, after he said "I do" to Spector's question, he said "The right to privacy is protected under the Constitution in various ways." Then, he listed different aspects of the constitution which did thus. His "right to privacy" is based on scattered textual bases in the constitution, whereas when people (especially Senators) speak of a "right to privacy," they generally mean that the Constitution has a "right to privacy" on par with, say, "freedom of speech." Thus, if a future case came up, do not expect judge Roberts to rule that people have a "fundamental right to privacy" in se. It must be rooted somewhere in the text.

The difference is that privacy, as mentioned in the constitution, is an INCIDENTAL result of constitutional stipulations and amendments as opposed to a STANDALONE principle.

As far as the logic of Griswold goes, I think he indicates that he agrees with the result as precedent, but not so sure that the reasoning in Griswold has stood the test of time:

"I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach."

My point is simply that he does not seem to agree with the reasoning in Griswold, although he seemingly is willing to uphold it as precedent, because it is well, precedent.

I did read and do understand (I think) the nuanced language that Roberts used in responding to the "right to privacy" question. As I said on Ann's other post, I think the interesting thing will be to see how Specter follows up.

It is interesting to see how this nominee learned the lesson of Bork; particularly given whose question he was responding to.

I just wonder if some of his answers, particularly to Specter, are not "too clever by half". Not that I think there is any danger that this nominee will not be confirmed. It just sets the ground rules for the future when nominees will find new ways to say "Yes I agree, . . . but not really". If the nominees are not going to be straightforward, I would prefer the "I am not going to answer that" dance.

Maybe the problem is that lawyers are by their nature "too clever by half", and Judge Robers is, by all indications, an excellent attorney.

I frankly don't think that there is anyone on the Judiciary Committee who can seriously lay a glove on him. They aren't in the Senate because they were superb lawyers, but he is where he is because he is.